Candace Mak

The Representative Plaintiffs sought substantial or partial indemnity costs following a successful conditional certification motion in a class action.

The court awarded partial indemnity costs of $35,000 for the certification motion and $1,000 for costs submissions.

The court rejected substantial indemnity, finding the defendant's conduct in resisting certification was not egregious and did not warrant a punitive award.

It also found the plaintiff's Offer to Settle ill-advised and an "ill fit" for a certification motion, which is a mandatory procedural step that does not decide the merits of the case.

The respondent insurer requested a reconsideration of a decision granting the applicant entitlement to two treatment plans for chiropractic, massage, and physiotherapy.

The insurer argued the adjudicator erred in law by relying on subjective complaints and psychological evidence rather than objective physical evidence.

The adjudicator dismissed the reconsideration, finding no error in law in considering the totality of the evidence, including consistent subjective reporting, to determine if the treatment was reasonable and necessary.

The applicant's request for costs was also denied.

The plaintiffs brought a motion to revise a conditional Certification Order, approve the Notice of Certification, and determine costs.

The court found it unnecessary and inappropriate to revise the Certification Order, as it was properly taken out and there was no mistake.

The court approved a modified Notice of Certification and directed the parties to make written submissions on costs.

The applicant was injured in a motor vehicle accident and sought various medical and rehabilitation benefits, which the respondent insurer denied.

The applicant applied to the Licence Appeal Tribunal for dispute resolution.

The adjudicator found that the applicant was entitled to a comprehensive chiropractic treatment plan, an attendant care assessment, a chronic pain assessment, and a psychological assessment, as they were reasonable and necessary given the applicant's ongoing pain and psychological impairments.

However, two duplicative chiropractic treatment plans were denied.

The adjudicator also awarded interest on overdue payments but denied the applicant's requests for a special award and costs, finding no evidence of unreasonable conduct by the respondent.

This case conference order, issued amidst temporary court suspensions due to COVID-19, established a timetable for a class action proceeding.

The court provided specific directions for the conduct of a "Wagg motion" and set a tentative date for the certification motion.

Directions included provisions for electronic swearing of affidavits, service methods, and electronic filing of materials, aiming to facilitate the litigation process under the prevailing restrictions.

The plaintiffs in a conditionally certified class action sought court approval for new Class Counsel, a precondition for certification.

The defendant withdrew its decertification motion and consented to the appointment.

The court appointed Flaherty McCarthy LLP and Mack Lawyers as Class Counsel, rendering the action unconditionally certified.

The applicant sought statutory accident benefits following a motor vehicle accident.

The insurer denied several claims, and the applicant applied for mediation at FSCO, which was closed in June 2016.

The applicant filed an appeal with the Licence Appeal Tribunal in January 2019, more than two years after the denials and the closure of the FSCO file.

The Tribunal found the appeal was statute-barred under s. 56 of the Statutory Accident Benefits Schedule.

The Tribunal declined to extend the limitation period under s. 7 of the Licence Appeal Tribunal Act, noting the lack of evidence supporting the applicant's claims of confusion, the significant prejudice to the respondent due to the delay, and the failure to demonstrate the appeal's merit.

The applicant sought statutory accident benefits following a motor vehicle accident.

The respondent denied claims for income replacement benefits and chiropractic treatment plans in early 2016.

The applicant commenced an application to dispute the denials nearly three years later.

The Tribunal held that the applicant was barred from proceeding with the claims because the application was commenced beyond the two-year limitation period under section 56 of the Schedule.

The Tribunal found the respondent's refusals were clear and unequivocal, and declined to exercise its discretion to extend the limitation period under section 7 of the Licence Appeal Tribunal Act.

The applicant sought statutory accident benefits following a motor vehicle accident, specifically a treatment plan for physiotherapy services in the amount of $1,797.00.

The insurer denied the benefit.

The Licence Appeal Tribunal found that the applicant failed to prove the treatment plan was reasonable and necessary, noting that the applicant had tried physiotherapy pre-accident without significant benefit and that insurer examinations did not recommend it.

The application was dismissed and no interest was awarded.

The plaintiffs brought motions to certify three proposed class actions for settlement purposes against three immigration lawyers.

The plaintiffs alleged professional negligence and breach of fiduciary duty in the defendants' representation of Roma refugee claimants from Hungary.

The court found that the criteria for certification under section 5(1) of the Class Proceedings Act, 1992 were met, noting that compliance is not as strictly required for settlement purposes.

The motions for certification were granted.

The applicant was injured in a rear-end motor vehicle accident and sought statutory accident benefits for physical and psychological treatment.

The respondent insurer denied two treatment plans on the basis of an insurer's examination that concluded the injuries fell within the Minor Injury Guideline (MIG).

The Tribunal found the treatment plans reasonable and necessary, preferring the evidence of the treating psychologist and other insurer's examiners who noted ongoing pain and psychological disturbance over the physician who erroneously applied the MIG.

The applicant was awarded the claimed medical benefits plus interest.

The respondent insurer requested a reconsideration of a Tribunal decision that found the applicant entitled to payment for two chiropractic treatment plans.

The original adjudicator had approved the plans on the basis that it was reasonable and necessary for the applicant to choose her modality of treatment.

On reconsideration, the Tribunal found this was a significant error of law, as the correct test is whether the services themselves are reasonable and necessary, supported by objective medical evidence.

The original decision regarding the chiropractic plans was cancelled and a new written hearing was ordered.

The plaintiff sought to certify a class action alleging negligence against a dental office for improperly sterilized equipment leading to infectious disease exposure.

The defendants had issued a third-party claim against dental hygienists.

The parties reached an agreement on the terms of the Certification Order.

The court found an identifiable class with four sub-classes and agreed-upon common issues related to negligence.

The plaintiff was deemed an appropriate representative, and a litigation plan was accepted.

The action met the criteria under the Class Proceedings Act, 1992, and was certified as a class proceeding.

No costs were awarded.

The appellant appealed a summary judgment dismissing his action against his own motor vehicle liability insurer for uninsured or unidentified automobile coverage.

The appellant was struck from behind in a motor vehicle accident and argued that if the jury found neither of the two identified drivers liable at trial, he should be able to recover under the uninsured/unidentified automobile coverage.

The Court of Appeal upheld the dismissal, finding that there was no unidentified automobile involved in the accident and that the sole question at trial would be which, if either, of the two known vehicles or drivers was legally responsible.

This decision addresses several procedural and evidentiary motions within a proposed class action.

M.M. sought to discontinue her action against Ms. Denham.

The Society sought to convert its crossclaim against Ms. Denham into a third-party claim, convert Ms. Denham's crossclaim into a counterclaim, have the third-party action case managed in Toronto with the class action, and obtain a sealing order.

Ms. Denham opposed the Toronto case management and requested a transfer to Perth/East Region.

The court granted the sealing order, M.M.'s discontinuance, the conversion of claims, and the joint case management/trial.

Crucially, the court conditionally transferred the class action and third-party proceedings to the East Region, finding no advantage to Toronto management beyond counsel convenience and significant inconvenience to Ms. Denham.

The applicant sought reconsideration of a preliminary issue decision that required her to attend an in-person insurer examination (IE) before advancing her application for a psychological assessment.

The applicant argued the IE should be a paper review and that the Tribunal misapplied case law.

The Executive Chair found no error, holding that the insurer's request for an in-person IE was reasonable under s. 44 of the Statutory Accident Benefits Schedule, and that the insured cannot dictate the identity of the IE examiner.

The request for reconsideration was denied, and the application was adjourned for 60 days to allow the IE to take place.

The respondent insurer, having successfully defended an appeal regarding the appellant's entitlement to income replacement benefits, sought its costs of the appeal.

The appellant argued the claimed hours should be reduced as the appeal was straightforward and the insurer's counsel duplicated arguments from the preliminary issue hearing.

The Director's Delegate found the claimed 9.45 hours at the Legal Aid rate to be reasonable, as counsel had to analyze and respond to the appellant's submissions.

The insurer's disbursements were also found to be reasonable.

The appellant was ordered to pay the insurer's appeal expenses fixed at $1,513.94.

The plaintiff moved to certify a class action against a children's aid society and other defendants following a privacy breach where a confidential document containing personal information of 284 individuals was accessed and posted online.

The defendants consented to or did not oppose certification.

The court found that the pleadings disclosed a cause of action, including the tort of intrusion upon seclusion, and that all criteria for certification under section 5(1) of the Class Proceedings Act, 1992 were satisfied.

The motion for certification was granted.

The applicant sought statutory accident benefits for two chiropractic treatment plans and an attendant care assessment following a motor vehicle accident.

The insurer denied the plans.

The Licence Appeal Tribunal found that the applicant failed to provide sufficient medical evidence to prove the plans were reasonable and necessary, noting the applicant's own reports of functional independence to the insurer's examiners.

The Tribunal accepted the insurer's medical evidence that further treatment was not required.

The application was dismissed.

The applicant was injured in a motor vehicle accident and sought approval for a psychiatric assessment.

The respondent insurer denied the treatment plan and requested the applicant attend an independent psychiatric examination under s. 44 of the Statutory Accident Benefits Schedule.

The applicant refused to attend, arguing the insurer failed to provide adequate medical reasons.

On a preliminary issue, the Tribunal found the insurer's notice complied with s. 44.

While the applicant could be precluded from proceeding under s. 55 for non-attendance, the Tribunal exercised its discretion to adjourn the application for 60 days to allow the applicant to attend the examination, noting it would be unfair to bar the claim entirely when both parties agreed a psychiatric assessment was necessary.